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News from the Federal Circuit: Mixed Case Procedure Muddied!

News from the Federal Circuit:  On April 18, 2013, a panel of the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Conforto v. Merit Systems Protection Board, Case No. 2012-3119.  Conforto is one of the first Federal Circuit decisions applying the Supreme Court's unanimous decision in Kloeckner v. Solis (previously analyzed in detail in this blog). Kloeckner had directed that all mixed cases appealed from the Merit Systems Protection Board (MSPB) were to be filed solely in a  federal district court and not with the Federal Circuit appellate court.  In an apparent rejection of the Supreme Court's Kloeckner framework, the Federal Circuit panel excluded a category of mixed cases from the Kloeckner framework  --  those where the Board finds it has no jurisdiction  --  and declared that appeals from MSPB in those cases should be filed in the Federal Circuit.

Ms. Conforto was an employee of the Department of the Navy who claimed that she was forced to retire due to alleged  sex and age harassment, as well as reprisal for her prior protected EEO activity.  Ms. Conforto filed an MSPB appeal based on those EEO claims.  The MSPB administrative judge dismissed Ms. Conforto's appeal for lack of jurisdiction, finding that Ms. Conforto had failed to provide enough evidence that her retirement was involuntary. The MSPB does not have jurisdiction over hvoluntary retirements.  Ms. Conforto appealed the administrative judge's decision to the Federal Circuit.

The Federal Circuit panel issued a split decision.  The panel majority found that, despite Kloeckner, the Federal Circuit still retained jurisdiction over Ms. Conforto's mixed case appeal.  The panel majority distinguished Ms. Conforto's case from Kloeckner, noting that Kloeckner involved an MSPB administrative judge's dismissal for a 'procedural' reason (untimeliness of appeal), while Ms. Conforto's appeal was based on an MSPB administrative judge's dismissal for lack of 'jurisdiction'.  Turing to the merits, the panel majority found that Ms. Conforto's case was properly dismissed, finding insufficient evidence to convert Ms. Conforto's retirement into a constructive discharge.  In dissent, Judge Dyk noted that Kloeckner was squarely on point and found the panel majority's distinction between 'jurisdictional' and 'procedural' dismissals unpersuasive and likely unworkable in practice.  The panel's decision may well not be the last word on this issue, as the possibility exists to request rehearing of the panel's decision by the entire Federal Circuit, as well as to petition for certiorari with the Supreme Court.

If you are a federal employee facing an adverse action, mixed case or otherwise, and need assistance, you might want to schedule an initial consultation with one of Passman & Kaplan's attorneys.

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